Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

7 Conclusions

Introduction

7.1 In this final chapter, we summarise the main findings of the research in terms of the extent to which the reforms have achieved - and are seen by key actors to have achieved - their specific objectives; consider the contribution that the reforms to summary criminal legal assistance and disclosure have made to the wider project of summary justice reform; and discuss ways in which aspects of legal aid, disclosure and the wider system might be further improved.

Have the reforms achieved their specific objectives?

7.2 To recap, the reforms to summary criminal legal assistance aimed to ensure appropriate remuneration for solicitors, reduce bureaucracy and support the availability of defence services of a sufficient quality. The reforms to disclosure were focussed on improving early investigation, informing discussions on plea decisions between solicitors and their clients, and supporting more effective pleading and intermediate diets. Both sets of reforms were intended to facilitate the resolution of cases at the earliest possible stage.

Summary criminal legal assistance

7.3 Evidence from the survey of defence solicitors is unequivocal on the topic of remuneration: three-quarters disagreed that defence solicitors were now given a suitable level of remuneration to undertake summary criminal work of an appropriate quality. However, there is little evidence, from the quantitative data on SCLA payments, to indicate that 'per case' remuneration following the reforms is actually very different from the position pre-reform.

7.4 That said, the decrease in summary court cases and the number of legal aid grants do illustrate the significant drop in potential business now available to solicitors. Despite this, many interviewees believed that individual defence solicitors were busier - possibly because firms have reduced the number of staff working on criminal cases. Some felt that higher individual caseloads, in combination with perceived limitations associated with the fixed fee in terms of the ability to fully prepare and investigate the case, had reduced the quality of representation and was less fair to clients. A minority, however, felt that the time spent on some cases was balanced out by other less complex cases being resolved fairly quickly.

7.5 In terms of reducing bureaucracy, the evidence is mixed. Some interviewees were critical of the online system of applying for legal aid - although this was not a specifically SJR initiative. Others took a more positive view of the online system, regarding it as quick, although there was some concern that the need to provide evidence of a client's means, particularly if they were on benefits, could be very time-consuming (subsequent changes to the system mean this may be less an issue now). Other interviewees, particularly Sheriffs and clerks, and the data from the court recording exercise, suggest that legal aid applications do still cause some delays at later stages of the court process.

7.6 It is difficult to assess changes in the availability of appropriate defence services as a result of legal aid reform. The reduction in the volume of summary court business and legal aid grants might have been expected to impact on the supply of criminal legal services, and many defence solicitors interviewed for this research felt that that this had happened. However, data on the number of solicitors applying for legal aid suggests there are more now than two years ago. In addition, in a SLAB survey in spring 2010, 15% of criminal defence solicitors felt there were too many legal assistance solicitors in their local area (MVA Consultancy, 2010) and most (66%) felt the number was about right. Only one in ten (10%) of those who took part in the SLAB survey felt there were now too few legal assistance solicitors in their area.

7.7 Accused interviewees certainly did not report difficulty in obtaining the services of a solicitor. But there was a clear perception among accused that their solicitors were busy and, as a result, had limited time to spend discussing a case with them. Of course, there may be various factors at work here, including the perceived restrictions - among defence solicitors - of the fixed payments on case preparation and investigation, as from the overall reduction in potential business.

7.8 Although most solicitors (60%) did not believe their level of client contact had changed since the reforms, some did. That said, a reduction in client contact does not automatically equate to a poorer quality defence service. Indeed, many felt that the reforms had led to fewer, more productive client discussions - a factor attributed by some to the availability of the disclosable summary. The reforms to SCLA, whilst altering the value of certain grants and, in particular, introducing a higher early case disposal fee, did not change the 'fixed' nature of payments. Despite this, the fixed nature of SCLA payments featured amongst the views of many defence solicitors on their client contact. For some, fixed payments were felt to limit the level of service they were able to offer, restricting their ability to properly prepare for and investigate the case or acted as an incentive to undertake less work on the case - both of which were linked to a lower quality of service and a notion of reduced fairness for the accused and potential miscarriages of justice.

Disclosure

7.9 Many of the practitioners interviewed for the research believed that the introduction of disclosable summaries had been useful in facilitating early and more focused investigation of the case and discussions with the PF and clients. Around two-fifths of defence solicitors responding to the postal survey thought that disclosure had led to more early discussions about cases with Fiscals. However, a similar proportion perceived there to have been no change with a minority reporting fewer discussions.

7.10 Interviewees identified a number of remaining barriers to early and effective defence-Fiscal discussions. Both parties, for example, reported difficulty in contacting the other. Although a number of initiatives had been piloted to improve this, the impact of these was inconsistent from area to area. Available resources and subsequent caseloads were also mentioned. Fiscals were perceived to have limited time available to prepare for or discuss cases, though there was also a view that defence solicitors have limited time to discuss cases. In addition, the acceptable plea letter was believed to limit discussion and negotiation in some cases.

7.11 It was widely held, though, that disclosable summaries acted as a useful aid to solicitors in discussing plea decisions with their clients - most defence solicitors in the survey certainly reported this to be the case. Summaries were felt to be particularly useful in cases where the client was unable to recall the circumstances of the offence and in custody cases where, by demonstrating at an early stage the strength of the prosecution's case, defence solicitors were better placed to convince their client of the likelihood of a conviction at a later stage and to suggest the benefits of an early plea (in terms of avoiding remand or receiving a discounted sentence).

7.12 However, the quality of the summary was deemed to be important in influencing this discussion. Although the quality of summaries was generally felt to be good, some concerns were raised - by both defence solicitors and Fiscals - about summaries in more complex cases and about the reliability of some police accounts of civilian statements. The quality of the summary also appeared to influence the likelihood of an early plea. Although limited in number, the case trajectories for the sample of cases where disclosable summaries were analysed tentatively suggest that, when the summary is of good quality and contains all the necessary information, there is a greater likelihood of an early plea.

Facilitating early resolution of cases

7.13 Both sets of reforms were aimed at facilitating the resolution of cases at the earliest possible stage in proceedings. Analysis of the monitoring data indicates a clear rise in the guilty plea rate at PD following the introduction of the reforms and solicitors reported advising clients to plead guilty on the basis of evidence contained within the disclosable summary. In the survey of defence solicitors, many interviewees indicated that they were now more likely to advise a guilty plea and/or that other solicitors were more likely to do so. However, solicitors were more likely to attribute this to a combined effect of both sets of reforms rather than the independent effect of either changes to legal aid or disclosure.

7.14 Indeed, the difficulty of attributing an independent effect to one reform rather than the other was a recurring theme among practitioners. The monitoring data indicate a small increase in the rate of guilty pleas at PD following the introduction of disclosure but in advance of the changes to legal aid, and a more notable increase following the legal aid reforms. However, as the changes to disclosure were already in place when the legal aid changes were made, identifying the independent effect of legal aid is difficult. Some Fiscals and solicitors took the view that the revised legal aid arrangements act as an incentive to get things moving more quickly. But legal aid and disclosure were generally seen as acting in combination to increase the rate of early pleas.

7.15 In addition, the evidence in Chapter 6 clearly suggests that many other factors and changes in the summary system are seen to have influenced pleading decisions and the stage at which cases are resolved. In summary, these include:

• Sentence discounting, particularly where a custodial sentence is at stake
• Bail opposition and the risk of being remanded
• Changes in court business, Fiscal workloads and court scheduling
• The perception that negotiation will gain more concessions for the defence at ID
• A belief that there had been an increase in refusals of ABWOR by SLAB after the case had been disposed of
• Whether or not Sheriffs adopt a pro-active approach in questioning not guilty pleas or reasons for adjournments
• The perceived likelihood, among accused and their solicitors, that the trial would ultimately go ahead as scheduled.

To what extent have the reforms to legal and disclosure contributed to the overall objectives of summary justice reform?

7.16 The overarching objectives of SJR were to create a summary justice system that is: fair to victims, witnesses and accused; effective in deterring, punishing and helping to rehabilitate offenders; efficient in the use of time and resources; and quick and simple in delivery.

Fairness

7.17 There was a general perception among practitioners that fewer trials going through court should leave more time to deal appropriately with those which proceed - something which would make the overall system fairer. There was a lack of consensus, however, about the specific impact of the reforms to summary criminal legal assistance and disclosure on fairness of the summary justice system.

7.18 As noted above and in Chapter 4, although not directly related to the reforms to legal aid and disclosure, the restrictions imposed by the fixed nature of SCLA payments were felt by some solicitors to be unfair on clients because of a perceived negative impact on time spent on case preparation and investigation (including fewer custody visits, less client contact, less travel). Investigating complex cases was seen as especially challenging within the fixed fee system, and some solicitors were concerned that they have to rely on the summary and police report as the only available evidence, whereas previously they might have conducted their own precognitions. This is of particular concern because these are cases for which the summary of evidence is more likely to be perceived as insufficient and which would therefore require further investigation. It is notable though that exceptional case provisions, which provide additional legal assistance funding, are available for some cases of this nature.

7.19 Disclosure was generally viewed (by Fiscals, police, court staff, and to a lesser extent defence solicitors) as being fairer to accused persons, in that it equips them to make a more informed decision about their case. In addition, because this information is supplied early, accused persons are able to make decisions quickly, speeding up the conclusion of a case - something seen as fairer for all parties, not just the accused. Interviews with accused persons revealed a similar view on disclosure, which they believed as essential to ensure the process was just and fair. Indeed, having a summary of evidence was seen as particularly useful for some accused who may have had difficulties in recalling the details of an incident. However, some defence solicitors felt that disclosure had not made an impact on fairness to the accused. Furthermore, some Fiscals questioned whether the one-sided nature of disclosure, where the defence are not required to reveal their position to the Crown, is particularly fair.

7.20 Accused interviewees tended to view the system as generally fair, with little change in fairness noted since the reforms. That said, some felt that they were not listened to or respected by solicitors or Sheriffs. And although most were pragmatic about the process, the evidence and disposals, some felt limited in their ability to influence how the case is considered and taken forward.

7.21 Most practitioners interviewed for the case studies thought that the system was fairer to victims and witnesses because of disclosure, in that it facilitated early resolution of cases, and meant there was a less need for victims and witnesses to come to court. On the other hand, the use of 'trial by statement' which had occurred following the changes to post-PD disclosure was believed to impact unfairly on victims and witnesses. This was considered particularly problematic for 'regular' witnesses such as those working in the retail sector, who may find it hard to differentiate between incidents, or those witnesses cited for incidents which were a long time ago. Some interviewees suggested that initiatives were underway to try and reduce this negative impact, for example, by allowing witnesses to read their statements.

7.22 However, other practitioners viewed the reforms as having had no impact on fairness to victims and witnesses - for example, 59% of defence solicitors surveyed felt there had been no change in this respect. Some clerks and solicitors felt that sending witnesses away on the day continues to be an unavoidable part of the summary process a perspective partly supported by the monitoring data which indicate that TDs are just as likely, if not slightly more so, to be adjourned following the reforms.

Efficiency, effectiveness and speed

7.23 The key trends in the monitoring data - the reduction in overall volume of Sheriff court business and move towards earlier pleas - were also largely recognised by practitioners, most of whom felt the courts were operating more smoothly, efficiently and effectively than before. However, this was not necessarily the case in relation to all courts. In some JP courts, for example, the perceptions were of no reduction in caseload, some practitioners also perceived timescales as remaining long with considerable churn, especially at the trial stage of the process.

7.24 In considering the extent to which the legal aid and disclosure reforms have impacted on efficiency, effectiveness and speed, participants tended to focus directly on the impact of disclosure, although it is possible that impacts of legal aid may be embedded in general comments about the impact of summary justice reforms as a whole on efficiency, effectiveness, etc.

7.25 Some of the benefits of disclosable summaries were seen as directly contributing to a more effective and efficient system. Disclosure was seen as facilitating early case resolution, better case preparation, and some time saving for both Fiscals and solicitors. It was seen as allowing accused persons to make more informed and earlier decisions on how to plead - a point made by Sheriffs, Fiscals, defence solicitors and accused persons alike. Disclosable summaries were also seen by some Fiscals and solicitors as facilitating earlier negotiations and productive discussions between the Crown and defence, who could both use a 'common hymn sheet'. Some Sheriffs and Fiscals felt that disclosure has resulted in fewer cases being put off due to one party not being adequately prepared, and there were comments that the new process of disclosure saved time for Fiscals (they no longer need to provide lines of evidence and administrative staff no longer need to photocopy statements) and defence solicitors (in not having to spend time collating statements and in determining which witnesses they need to see prior to trial). Performance against timescale targets, related to full disclosure, was also felt to have improved.

7.26 However, some aspects of disclosure were felt to impact negatively on efficiency and effectiveness. Fiscals in some areas perceived that their workload had increased considerably as a result of the increased administrative burden of full disclosure - which also had an impact on the police - even outweighing any efficiency gains from summary justice reform. Others were unsure that having fewer cases coming through the system would balance things out. However, the new web-based disclosure system was felt by some Fiscals to be helping in reducing the amount of time they needed to spend on disclosure as well as providing confirmation when the information has been accessed by the defence.

7.27 Disclosure was still the cause of significant delay at IDs, as was a lack of preparation. One perspective, particularly amongst Sheriffs, was that delays were resulting from defence solicitors attempting to investigate all information that had been disclosed (some of which was considered to be irrelevant to the case). They also pointed out that, although timescales had improved, the defence may still not receive the information early enough in advance of the ID - a point also made by some defence solicitors and Fiscals.

7.28 The discussion in Chapter 5 indicated that some defence solicitors felt the information provided by disclosable summaries was insufficient for them to advise their clients properly - particularly in complex cases - providing, at best, a 'flavour' of the case, and that full disclosure was necessary in order to do this. Last minute adjournments due to the defence not being fully prepared were said to be still occurring in some areas.

7.29 The economic analysis demonstrated considerable savings in terms of the cost of processing Sheriff summary cases following the legal aid and disclosure reforms. However, the main savings to the system have arisen from a change in sentencing practice, significantly fewer cases being dealt with in the courts and a corresponding reduction in legal aid applications - none of which was influenced by the reforms to legal aid and disclosure. Some savings do appear to have occurred as a result of the increase in early guilty pleas - a change which can be attributed to these reforms - however, these have been offset to some extent by the increased likelihood of adjournments.

7.30 Sheriff summary cases are more likely to have a guilty plea at PD now than in the pre-reform period. Nevertheless, overall, these court cases were less likely to be disposed of within 20 weeks post-reform than pre-reform. Nor has there been much reduction in the average number of diets per case in the period since the legal aid and disclosure reforms. However, the overall shift in the distribution of summary business, with a significant proportion of court business now being dealt with by DMs, makes a like-for-like consideration difficult, as Sheriff courts now deal with a greater proportion of serious and complex offences.

7.31 The majority of solicitors surveyed (57%) felt the reforms to legal aid and disclosure had made no difference to the speed of cases coming to trial, while 29% felt that things were now quicker (mostly driven by disclosure although also a combination of both legal aid and disclosure to some extent). The majority of solicitors surveyed (53%) disagreed that cases are better prepared and subject to less delay, and half (50%) felt there was no change in efficiency as a result of legal aid and disclosure.

7.32 Our calculations suggest that around 62% of Sheriff summary cases post-reform result in a guilty plea. On average, around half of these are tendered at the PD, meaning the remainder occur later in the process - suggesting scope for some further improvement in this regard. However, many practitioners emphasised that, for a variety of reasons, some cases will always result in late pleas. Relevant issues here include the attitudes of accused persons; the availability or non-appearance of witnesses; lack of court time; the individual court culture; difficulties in communication between defence and prosecution; perceived under-funding of the Fiscal service; and sometimes disclosure problems.

How might the processing of summary court cases be changed to improve fairness, effectiveness, efficiency and speed?

7.33 The monitoring data indicate that after an initial impact on the early guilty plea rate following the legal aid and disclosure reforms, there has not been a continued improvement. Given the precise nature of the changes involved - the introduction of disclosable summaries was rolled out quite quickly and consistently across all courts and the change to legal aid payments was immediate - it might have been expected that the reforms would have had an immediate and fairly major impact, as participants in the system could quickly react to them, and not require an extended bedding in period. As the initial impact now appears to be tailing off, it is worth considering what further changes, either to legal aid or disclosure or to other aspects of the system, might facilitate further progress towards the SJR aims.

7.34 A number of the potential efficiency gains mentioned by interviewees related to online technology - the electronic processing of disclosure for example. It is important to ensure that online technology works efficiently and also that it does not have unintended consequences. For example, there was a perception that while the 'cite all' button on one of the PF screens used to process citations may save time initially for the PF by removing the need to judge the necessity of each witness in each case, this was leading to over citation (e.g. of police witnesses) in some cases. Also noted were the difficulties with disclosure by pen drive on the day of the ID. When this happens, it can require an adjournment to allow the defence solicitor to print the material out and review it before discussing with their client. This situation could be avoided by ensuring timely disclosure in all cases but, in those where it is not, disclosure on paper, rather than via pen drive, might be considered.

7.35 The speed of throughput can be as much a function of external matters, such as a need to obtain viewable and court compatible CCTV images and forensic results, as legal processes and procedures. Improving the system's ability to cope with these would probably result in improvements to efficiency and speed.

7.36 The prospect of a sentence discount featured highly as a factor motivating early pleas but there was still a sense amongst interviewees that discounts were not consistently, or obviously, applied. Ensuring the consistent application of sentence discounts, or extending them as a reward for early pleas, might lead to a greater number of early pleas.

7.37 Witness non-attendance at TDs is still a key cause of adjournment and the likelihood of trial adjournment remains a significant factor in plea decisions by accused. There would be benefits, then, in maximising witness attendance so that accused are discouraged from taking a chance on an adjournment and offering a not guilty plea.

7.38 Although practitioners often saw the summary justice reform package as a potential catalyst and opportunity for better and more focused communication between agencies and professional interests, in some respects, the centralised systems designed to improve efficiency may have made this more difficult. The PF call centre and centralised witness citation system, for example, were mentioned in this context.

7.39 Indeed, the requirement for individuals and parties to work together to ensure the success of the reforms was acknowledged as a significant barrier to their achievement. This 'human side' of the system was seen as causing delays which would be difficult to resolve. The challenge of having so many parties involved - all with potentially different priorities - was also seen as a barrier to the system working effectively, even though it was suggested that working together was becoming more of a priority. There was also a view that this is a long term process and that, although the reforms have facilitated change, the complexities of the system on the ground mean that there is a continuing need to review local practices. There may be a greater role for the judiciary to promote and co-ordinate this local co-operation and efficiency. In one area, at least, the acknowledged pro-active and collegiate approach of the local bench appears to have had a notable effect on the culture of other court practitioners and on case outcomes.